Excerpt:.....of accused guilty of offence punishable under section 14 (g) - accused was not found to be on active duty defined by section 2 (a) - prosecution also failed to establish any written direction under section 2 (a) read with section 10 - complaint lodged against accused and sanction was obtained much later - it is clear illegality vitiating prosecution and rendering it bad ab initio - held, order of acquittal upheld.
- - it is also the submission of the accused that the prosecution was, even otherwise, bad in law. 4. the learned sessions judge, considering the evidence and circumstances, came to the conclusion that the prosecution had failed to prove that the accused was on 'active duty' on the relevant date 25th october, 1973. it was further held that the prosecution also failed..........came to the conclusion that the prosecution had failed to prove that the accused was on 'active duty' on the relevant date 25th october, 1973. it was further held that the prosecution also failed to prove that on the said date 25th october 1973, the accused deserted the check post at jawda and his duty without leave or without proper authority. the accused was consequently acquitted.5. in this appeal against the said acquittal, we have heard mr. b. y. deshmukh, the learned public prosecutor for the state and mr. s. r. chitnis, the learned counsel for the accused. hearing the rival submissions of the respective advocates, we are of the view that this appeal must fail on more than one ground.6. in the first place, the prosecution has failed to establish and prove that the accused.....

Judgment:

Pratap, J.

Order of acquittal dated 13th January, 1977 passed by the learned sessions Judge, Dhule, in Sessions Case No. 67 of 1976, in which the accused stood charged for offence under Section 14(g)(ii) of the Bombay State Reserve Police Force Act, 1951 (hereinafter the said Act), is challenged in this appeal against the same by the State.

2. At the relevant time (October, 1973), the accused was one out of five constables under a head constable manning check post at Jawda in Shahada taluka of Dhule district with a view to curb illegal export activities relating to cotton and foodgrains outside the State of Maharashtra. The head constable at the said time in charge of the aforesaid check post was one Sarode. This party was on duty from 14th October, 1973. On 25th October, 1973, the accused received information that his son, a one-year-old boy, suffered an accident by falling down from a staircase and injuring himself. On receiving this information, the accused requested Head Constable Sarode for permission to go and visit his son. The accused thereafter went. Some time thereafter, in the evening of 28th October, 1973, the Company Commander one Abbaskhan Pathan reached the aforesaid Jawda check post. The accused was found absent. The Commander was at the said check post till the morning of the next day 26th October, 1973. The accused had, however, not returned till that time. The Commander made a report exhibit 6 in that behalf. Later on, Commander Abbaskhan lodged on 9th January, 1974 a complaint exhibit 9 (vide Crime No. 7 of 1974) against the accused under Section 14(g) of the said Act. After completion of investigation and after obtaining sanction, the accused was charge-sheeted before the Court of the Judicial Magistrate. First Class, Shahada, on 21st February, 1974 and he was, in due course, committed to stand his trial before the Court of Session.

3. Case against the accused was that he was guilty of offence punishable under Section 14(g)(ii) of the said Act, inasmuch as he had deserted his duty and post at the relevant time. The accused pleaded not guilty. He submitted that he had in fact taken permission of Head Constable Sarode in charge of the Jawda check post and realising the gravity of the situation, Sarode had granted him permission to leave his post with instructions to return immediately. The accused also submitted that he had later on also contacted his own commandant and had explained to him the circumstances and the situation in which he had to leave. The commandant had then issued oral directions to be communicated to the Company Commander Abbaskhan to permit the accused to resume his duties. The accused submitted that he was falsely charged. It is also the submission of the accused that the prosecution was, even otherwise, bad in law. The accused claimed to be acquitted.

4. The learned Sessions Judge, considering the evidence and circumstances, came to the conclusion that the prosecution had failed to prove that the accused was on 'active duty' on the relevant date 25th October, 1973. It was further held that the prosecution also failed to prove that on the said date 25th October 1973, the accused deserted the check post at Jawda and his duty without leave or without proper authority. The accused was consequently acquitted.

5. In this appeal against the said acquittal, we have heard Mr. B. Y. Deshmukh, the learned Public prosecutor for the State and Mr. S. R. Chitnis, the learned counsel for the accused. Hearing the rival submissions of the respective Advocates, we are of the view that this appeal must fail on more than one ground.

6. In the first place, the prosecution has failed to establish and prove that the accused was on active duty at the relevant time. Now, the terms 'active duty' has been defined by Section 2(a) of the said Act to mean -

'(i) the duty to prevent or investigate offences involving a breach of peace or danger to life or property and to search for and apprehend persons concerned in such offences or who are so desperate and dangerous as to render their being at large hazardous to the community;

(ii) the duty to take all adequate measures for the extinguishing of fires or to prevent damage to person or property on the occasion of such occurrences as fires, floods, earthquakes, enemy action or riots and to restore peace and preserve order on such occasions;

(iii) such other duty as maybe specified to be active duty by the State Government or the Inspector-General in a direction issued under Section 10'.

Now, on the undisputed facts of this case itself, the accused cannot, by any stretch, be said to be one on active duty at the relevant time. The Act itself, as indicated hereinabove, defines active duty and one of the ingredients of the said definition applies to the facts and circumstances in existence at the relevant time in the present case viz., 25th October, 1973, when the accused left to see his young child who had suffered from an accident as a result of a fall from the staircase. Both in the Court below as also before us, the prosecution has failed to establish that the accused was on active duty within the meaning of the aforesaid provision of law at the relevant time.

7. Contention raised, however, was at the relevant time should be 'deemed' that the duty in question of the accused to be active duty. It is not possible to accept such a deeming effect to be given to an express provision of law defining active duty. Furthermore, any expansion of the said definition or any deeming fiction while interpreting an express provision of law is normally not permissible in a criminal prosecution. The very fact that the prosecution has to go to the length of giving an artificial extention to an express provision of law indicates that the provision otherwise strictly construed does not attract the facts and circumstances established by the prosecution. Prosecution and/or conviction therein cannot be based upon ambiguity or fiction. The accused cannot be put in jeopardy as a result of an artificial extension of an express provision of law or by conferring upon the said provision a fictional status. Construing the definition provision of 'active duty it is clear that even taking all the facts alleged by the prosecution to be correct, it does not bring the case of the prosecution within the meaning of the terms 'active duty' defined by Section 2(a) of the said Act.

8. Even if one were to have recourse to sub-clause (iii) of clause (a) of Section 2, it is not possible to bring the case of the prosecution within the term 'active duty', of course, means such other duty as may be specified to be active duty by the State Government or by the Inspector-General in a direction issued under Section 10. In this behalf, we are left totally in the dark. We do not know whether any such direction under Section 10 of the said Act was issued in this case qua the duty to which the accused was, at the relevant time, attached at the Jawda check post. In fact, it was conceded before the trial Court that there was no such written direction. Even before us, nothing contrary has been submitted. And even otherwise, it is obvious that a direction within the meaning of sub-clause (iii) aforesaid must be a written direction. Even assuming that it can be oral direction, the said oral direction must be established as a matter of fact by the prosecution. The prosecution has failed to establish any written direction within the meaning of sub-clause (iii) aforesaid of Section 2(a) read with Section 10 of the said Act. The prosecution has also failed to establish as a fact any oral direction as aforesaid. On this ground itself, therefore, the prosecution must fail.

9. Yet another ground, on which the prosecution must fail, is on the question of filing of the complaint much prior to the obtaining of the actual sanction. Under sub-rule (2) of Rule 47 of the rules framed by virtue of powers under Section 21 of the said Act, if any decision is taken to prosecute an accused after obtaining previous sanction required for the prosecution, information regarding the alleged offence shall be given to the concerned police station. Obvious consequence is that there must first be sanction obtained and only thereafter, on the basis of the sanction obtained, a complaint must be lodged and a prosecution must be instituted. Exactly, the reverse, is the situation in the present case. Complaint was first lodged and much later was sanction obtained. This cannot be said to be a mere irregularity. It is a clear illegality vitiating the prosecution and rendering it bad ab initio. This, therefore, is yet another ground, on which the prosecution must fail.

10. One more ground was urged on behalf of the accused viz., a contention arising out of sub-rule (1) of Rule 47 of the aforesaid rules and to the effect that when a reserve police officer is reported to have committed an offence under Section 14 or 15 of the said Act, the commandant, on receipt of a report regarding the facts of the incident, shall decide whether and this is important, 'the accused should be proceeded against in a Court of law or should be dealt with departmentally.' Record here does not indicate whether, on receipt of any such report, the commandant had considered the matter in this light and had applied his mind to the question whether this was a case where a prosecution should be launched departmentally. We, however, do not propose to go into and adjudicate upon this contention, as it is not necessary to do so, in the light of th fact that the prosecution and consequently this appeal must fail on the earlier two grounds mentioned hereinabove.

11. In this view of the matter, this appeal against acquittal fails and is dismissed. Bail bond will stand cancelled.